THE LOUIMA RULING: RETRIAL

THE LOUIMA RULING: RETRIAL; Both Sides Express Confidence About New Schwarz Trial

By WILLIAM GLABERSON

Published: March 2, 2002

Correction Appended

There appears to be one act left in the long-running drama of the Abner Louima case: the retrial of Charles Schwarz.

The guilt or innocence of Mr. Schwarz, a former police officer, has been contested in two prior trials, many hearings and countless news articles since the 1997 torture of Mr. Louima, the Haitian immigrant, in a station house bathroom one August night.

But a day after the federal appeals court decision overturning Mr. Schwarz's initial conviction, people with loyalties on both sides of the case laid out some of the details of their latest strategies and their reasons for confidence.

Mr. Schwarz's defense lawyer, Ronald P. Fischetti, said he would call former officers to the stand, including the admitted assailant, Justin Volpe, and Thomas Wiese, who has said he and not Mr. Schwarz was in the bathroom before and after the assault.

Mr. Fischetti, who has waged a three-year campaign for Mr. Schwarz without fee, said he would question Mr. Louima's credibility. He said he had a wealth of evidence never heard by any jury that would prove the prosecutors had prosecuted the wrong officer.

''We're going to prove that Chuck Schwarz was never in that bathroom with Abner Louima and we're going to do it with facts that the government has but that have been kept from the juries,'' he said. ''We're going to do it with testimony from Justin Volpe and with testimony from Tommy Wiese that Chuck Schwarz was never in that bathroom.''

The prosecutors would not comment yesterday. But Zachary W. Carter, the former United States attorney who began the case and oversaw its first successful convictions, said a new trial would surely prove what he said two juries had already found: that Mr. Schwarz did take part in the attack and that there was a conspiracy to cover up his role.

He said the prosecution's arsenal would be as full in a new trial as it was when it won a conviction of Mr. Schwarz the first time, in 1999.

Mr. Fischetti said he would confront the prosecutors with his claims that they charged the wrong police officer.

''They made up their minds and they weren't going to admit that they made a mistake,'' he said.

Mr. Carter said Mr. Schwarz's wrong-officer defense was as weak now as when it was rejected by two prior juries that convicted him of taking part in the assault and then conspiring to cover up his role.

The appeals court overturned Mr. Schwarz's conviction in its ruling on Thursday because his lawyer at the time had a conflict of interest. The court also overturned obstruction of justice charges against him and two other former officers, Mr. Wiese and Thomas Bruder, saying the prosecutors did not prove that the men lied specifically to mislead a federal grand jury.

The signs from the United States attorney's office in Brooklyn have indicated that prosecutors were preparing for a retrial of Mr. Schwarz.

But other lawyers said a final decision might not be made until it is clear whether the Senate will approve President Bush's nominee, Roslynn R. Mauskopf, to be the new United States attorney in Brooklyn.

Michael McKeon, communications director for Gov. George E. Pataki, who has been behind Ms. Mauskopf's nomination, would only say:

''We haven't had an opportunity to review the decision. The governor has said we have to have faith in the courts.''

In the meantime, the preparations for courtroom battle are beginning.

Mr. Fischetti said the full story that would be heard by the new jury would disprove the prosecutors' claims that Mr. Schwarz led Mr. Louima toward the bathroom and then held him down while Mr. Volpe sodomized him with a broken broomstick.

Mr. Volpe testified at the obstruction of justice trial that Mr. Schwarz was not in the bathroom, but he did not testify to that at Mr. Schwarz's initial trial.

The jury in the obstruction trial clearly did not believe Mr. Volpe's account, and in overturning the verdict in the case, the appeals court said nothing more than that the prosecution had failed to meet a very specific charge.

In fact, the judges made clear that a jury surely would have concluded that the three officers had intentionally misled investigators about what happened that night.

Mr. Fischetti said he would argue that Mr. Volpe had no motive to lie. He said he would tell the jurors that they should be suspicious not of Mr. Volpe but of the prosecutors who refused to believe him when he said it was not Mr. Schwarz but Mr. Wiese who was with him.

Mr. Fischetti also said there would be critical evidence in testimony he expected from Mr. Wiese. Mr. Wiese has said before that he led Mr. Louima toward the bathroom and went in after the assault but was outside the door during the assault playing with a station-house puppy.

Mr. Carter said yesterday that the prosecutors would continue to argue that there was a strong incentive for Mr. Volpe to say that anyone other than Mr. Schwarz was with him. Even today, he said, Mr. Volpe is part of what some have called the ''blue wall of silence,'' an alleged agreement among police officers to frustrate the efforts by federal prosecutors to find those responsible for the attack on Mr. Louima.

''It has always been a focus of the conspiracy,'' Mr. Carter said, ''that this incident would result in nothing worse than one officer, Volpe, being held responsible.''

Another approach expected at the new trial would also echo claims prosecutors have made before about witnesses who said Mr. Schwarz was not in the bathroom. At the conspiracy trial, prosecutors ridiculed Mr. Wiese's statement that he remained outside the bathroom door during the attack.

In his closing statement to the jury at that trial, the chief prosecutor, Alan Vinegrad, said Mr. Wiese's account was full of lies, including his claim that he obliviously played with the puppy, Midnight, while Mr. Louima screamed out in pain.

''Is it credible,'' Mr. Vinegrad asked then, ''that Tom Wiese waited outside the bathroom door for upwards of two minutes, playing with a puppy, while Abner Louima was being beaten and kicked in the groin and sodomized right on the other side of the door?''

Mr. Carter said that the jury obviously agreed with Mr. Vinegrad's argument and that a new jury would, too.

Mr. Vinegrad, now the interim United States attorney, had been expected to leave the office if Ms. Mauskopf is approved. But his departure, lawyers say, would be a blow to the prosecution's efforts in a retrial because of his encyclopedic command of the details of the case and a tenacious commitment to it. It is not clear whether he would remain in the office to retry the case if Ms. Mauskopf replaced him in the top job.

Yesterday, Mr. Fischetti said he would not deny that Mr. Louima suffered a vicious assault and deserved justice. But he said he would suggest that Mr. Louima was mistaken in the key part of his account that led the prosecutors to focus on Mr. Schwarz.

Mr. Louima has said he could not identify Mr. Schwarz but said the driver of the patrol car was the officer who held him down while Mr. Volpe attacked him. There is no dispute that Mr. Schwarz was the driver. But Mr. Fischetti maintains that Mr. Louima mistook Mr. Schwarz for Mr. Wiese, two white men with light hair.

''He knows there is a second man in the bathroom, but he doesn't know who it is,'' Mr. Fischetti argued. ''Both look alike.''

Mr. Carter said that argument was an indication of how Mr. Fischetti had distorted the details of the prosecution's case. He said Mr. Louima could not have confused Mr. Schwarz and Mr. Wiese because, he said, Mr. Schwarz towers over Mr. Wiese. ''They look about as alike,'' Mr. Carter said, ''as Arnold Schwarzenegger and Danny DeVito.''

Correction: March 4, 2002, Monday An article on Saturday about plans for a retrial of former Police Officer Charles Schwarz in the torture of Abner Louima misstated the acknowledgment by another former officer, Thomas Wiese, about his presence in the bathroom where the assault took place. Mr. Wiese has said that he entered the room only after the assault, not before, and that he was outside the door while it went on.